Kathleen Connelly is a partner in Lindabury, McCormick, Estabrook & Cooper (based in Westfield, NJ) who serves as the Co-Chair of the Firm’s Labor & Employment Practice Group. She provided the following insight into the updated guidance from the Equal Employment Opportunity Commission (EEOC) on mandatory COVID-19 testing in the workplace.

Early in the onset of the COVID-19 pandemic the Equal Employment Opportunity Commission (EEOC) issued guidance clearing the way for all employers to mandate COVID-19 viral testing for all employees without the need for any individualized justification or assessment. The health risks posed by the virus at that time prompted the agency to conclude that the health emergency trumped the Americans with Disabilities Act’s prohibition against medical testing that was not “job related and consistent with business necessity.”
The Heightened “job Related and Consistent with Business Necessity” Requirement.

In a hopeful sign that the COVID-19 pandemic may be waning, on July 12, 2022, the EEOC revised its mandatory testing guidance to now require employers to assess whether current pandemic circumstances and individual workplace circumstances justify COVID 19 testing of employees to prevent workplace transmission. The EEOC cautioned that the reinstitution of the “job related and consistent with business necessity” standard “is not meant to suggest that such testing is or is not warranted; rather, the revised [guidance] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted.”

The updated guidance lists the following possible factors that an employer may want to consider during the assessment to satisfy the heightened standard:
• The currently levels of COVID-19 community transmission
• The vaccination status of employees
• The degree of breakthrough infections of fully vaccinated employees
• The transmissibility of current variants
• The potential severity of illness from current variants
• The level of contacts employees may have with others during the course of their work
• The potential impact upon the employer’s operations if an infected employee enters the workplace

The EEOC further cautioned that when making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether COVID-19 testing is appropriate for these employees.

Other Screening Measures Not Affected.
These revisions do not impact the employer’s ability to implement other non-invasive screening measures, such as temperature checks, questionnaires about an employee’s symptoms or vaccination status, or to mandate vaccinations for those entering the workplace, subject to the reasonable accommodation requirements for medical conditions or religious practices.

Employer Actions.
Employers who currently have mandated COVID-19 viral testing programs should immediately conduct an assessment, applying the factors listed by the EEOC, to ensure the testing meets the “job-related and consistent with business necessity” standard. A failure to meet this standard could prompt claims that the employer’s testing program was in violation of employee rights under the ADA. Employers should document the assessment to create a record of how the suggested EEOC factors were evaluated to defend against any challenges to the testing program. These records should be retained for at least two years.

About Lindabury, McCormick, Estabrook & Cooper, P.C. (www.lindabury.com)
Lindabury, McCormick, Estabrook & Cooper, P.C., (“Lindabury”) is a mid-sized general practice law firm, located in Central New Jersey. From its offices across New Jersey, New York and Pennsylvania, the firm services clients throughout the Mid-Atlantic region. Lindabury provides litigation and transactional counsel to a broad spectrum of clients, including corporations, privately held businesses, insurance firms, healthcare institutions, trade associations, employee benefit funds, banks and financial institutions, nonprofit organizations and individuals.